General Terms and Conditions of Sale Thomas Henry GmbH & Co. KG
§ 1 Application
(1) These terms and conditions of sale also to be seen under http://www.thomas-henry.de/agb/ shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
§ 2 Offer, Acceptance
Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks. Our offerings in our prospects, our website or other where are, if not explicitly marked as with obligo non-binding. By placing an order the Customer makes a binding offer to purchase the relevant products.
§ 3 Prices, Payment
(1) Delivery shall be made at the respective daily/list prices or agreed sales prices that are valid on the date of delivery for the relevant customer group. Prices are ex works, exclusive of the respective statutory VAT and exclusive of costs for packaging, except as otherwise expressly agreed upon. Price changes take effect upon notification of the buyer. All price lists and other price agreements, if any, become null and void as soon as the latest price list comes into effect. All prices are absolute net prices and in particular do not include value-added tax, customs duties or other taxes.
(2) The purchase price is, if not agreed otherwise, due and payable net immediately from the date of the invoice. From the due date default interest in the amount of 8% above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
§ 4 Offset, Retainer
The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
§ 5 Delivery
(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
(2) In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
(3) However, labor disputes, partial or total supply shortages or supply delivery delays, transportation hindrances or other events of force majeure entitle Thomas Henry to postpone delivery for the duration of the hindrance or delay plus a reasonable lead time. The same applies to seasonal excess demand.
(4) We reserve the right of correct and timely delivery to us by our suppliers. In case of non-availability of the service or goods we will inform the buyer without delay. Any consideration is repaid immediately. If the buyer picks up merchandise or other goods, it is his duty to load these on suitable vehicles safe for transport, even if employees of Thomas Henry or their affiliated companies provide their assistance. Insofar the buyer releases these companies and their employees from any and all damages and claims asserted by third parties.
§ 6 Passing of Risk, Shipment
If the purchaser demands shipment of the goods the risk of loss or damage to the goods passes to the purchaser upon dispatch.
§ 7 Retention of Title
(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request.
§ 8 Quality/Warranty
Thomas Henry will deliver beverages in perfect quality that are produced in accordance with applicable laws. Any complaints concerning the amounts or prices indicated on the delivery note and/or invoice – including for deliveries of pallets – are to be submitted upon receipt of goods, at the latest within 10 days. Any delay in submitting the complaint will result in the customer losing the right to subsequent delivery or credit.
(1) Precondition for any warranty claim of the purchaser in other respects is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). Upon delivery, the buyer shall immediately and carefully inspect the goods concerning defects with regard to the quantity and quality of the supplied and returned packaging (full and empty packaging) and means of transport (beverage components; other returnable containers), the types and grades, including the remaining time period up to the best-before date of the supplied merchandise as guaranteed by us. A corresponding notification of defects must be submitted immediately, otherwise the merchandise is considered to have been accepted in this regard. Other defects must be claimed in writing within three business days after delivery; latent defects that were not noticed during the proper inspection for defects are excluded from this rule. A notification of the latter must be submitted within three business days after such defects were noticed. Timely dispatch of the notification shall suffice for compliance with the deadline. Apart from that, any notifications of defects are excluded.
(2) Warranty claims shall be time-barred after 12 months of the passage of risk.
(3) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.
(4) The buyer shall verify balance confirmations, empties balances and other invoice statements. Any objections to these confirmations, balances or invoice statements must be made immediately; they are excluded one month after receipt of the invoice statement and are then considered to have been accepted.
§ 9 Liability
(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.
§ 10 Empties
The empty containers intended for reuse (e.g., cases, deposit bottles, kegs, CO2 cylinders, pallets, etc.) are only left to the customer for their intended use and are to be returned to Thomas Henry or a third party it designates without delay. They remain the inalienable property of Thomas Henry or the producing bottler. Additional labeling always requires the express consent of Thomas Henry. Thomas Henry is entitled to bill deposits at market rates. Empty containers and pallets must be returned in the same kind and quality and in perfect condition. For properly returned empties, a corresponding deposit credit will be issued. Empties not returned will be billed at the reasonable discretion of Thomas Henry, but at least 50% of the replacement cost for a new empty (“deduction new for old”) after deduction of the deposit. The same applies if there is a negative empties balance at the termination of the business relationship. Notwithstanding, Thomas Henry is only obligated to accept cases and pallets with their intended bottles and cases that were delivered in each case (so-called sorted reusable empties).
§ 11 Applicable law, Jurisdiction Data protection
(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Berlin.
(3) We hereby inform the buyer pursuant to Section 4a (1) sentence 2 German Federal Data Protection Act (BDSG) and Section 4 (1) German Telecommunications Data Protection Act (TDDSG), and the buyer hereby consents, that we may collect, save and process all of his data from the business relationship and use our own anonymized and/or pseudonymized marketing with third parties and to disclose such data to affiliated third-party companies and to third parties employed for the performance of the contract, especially shipping companies. The buyer’s aforementioned consent also comprises the disclosure of data to industry-specific credit agencies. This consent can be revoked at any time.
(Current as of 9/2014)
Thomas Henry GmbH & Co. KG
, Bessemerstraße 2-14, D-12103 Berlin
Phone: +49 (0)30 75 76 57 95-0 | Fax: +49 (0)30 39886804 | Amtsgericht Charlottenburg, HRA 44065 B, VAT identification number: DE 272487046
Managing Director: Wilhelm Plumpe, Phillip Raddatz
Bank: Berliner Bank, Account 3520103, BLZ 10070848, IBAN: DE 05100708480352010300, BIC/SWIFT: DEUTDEDB110